"The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion....[A]n enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect." Justice Hugo Black, Bridges v. California (1951)

Friday, May 9, 2014

The Indiana Lawyer has an excellent article about the poor proprietorial decisions of the Indiana Supreme Court Disciplinary Commission when it came to a recent advertising disciplinary case:

A recent Indiana attorney disciplinary order quickly gained the notice of the ABA Journal
and legal blogs, prompting
some analysts to predict the ruling would
have a chilling effect on lawyers here and around the country. But the
case also
involved pursuit

of discipline that a
court-appointed hearing officer called “disconcerting.

The Indiana Supreme Court’s April 11 opinion, In the Matter of: Anonymous,

Crown Point Attorney Tim Kelly

45S00-1301-DI-33, concluded a protracted
attorney discipline case with a private
reprimand. The lawyer was found to have made misleading communications
regarding legal
services offered in testimonials, and he
failed to include his office address on a promotional item.

Let me stop there. Once the Disciplinary Commission files charges, they are public, and any reasonable hope of an actual "private reprimand" is extinguished. It didn't take much effort on the part of Indiana Lawyer writer Dave Stafford to figure out who the attorney is.

The article continues:

But the offending testimonials weren’t on the attorney’s website. They
appeared on the website for Law Tigers,
a network of the American Association of
Motorcycle Injury Lawyers that the lawyer subscribed to. Additionally,
the promotional
item that lacked an address did conform
with advertising rules at the time it was produced. After a rule change
added a requirement
that office addresses appear on
advertising, the lawyer acknowledged the change escaped his notice. Once
aware of the rule
change, he added his address to Law Tigers
promotional items that he passed out at biker events, according to the
record.

A cursory review of the case reveals that anonymous is Tim Kelly, a
longtime Crown Point personal injury attorney. A closer
examination of the record suggests Indiana
Supreme Court Disciplinary Commission attorneys went too far and
employed tactics
in prosecuting the case against Kelly that
may have violated Rules of Professional Conduct. (My emphasis.)

“My father practiced law in Indiana for
30-plus years and never had a disciplinary issue. I’ve practiced law
for almost 42 years and this is the only
discipline issue I’ve ever had,” Kelly said. “I’ve worked
extremely hard to be ethical, honest,
successful and recognized as a good lawyer. … It is really devastating
that something
like this resulted in me being
disciplined.”

The Supreme Court disciplinary order
makes no mention of problems with the commission’s investigation. But
Lake Superior
Magistrate Michael Pagano, who presided as
hearing officer, concluded his sometimes-blistering report to the court
by writing
that he initially believed the commission
“overreached.”

When questioned about the propriety of the prosecution, Disciplinary Commission Executive Secretary Michael Witte passed the buck to staff attorney Frederick Rice in order to speak for the Commission:

Rice downplayed Pagano’s criticism of the commission’s prosecution of
Kelly’s case. “The Supreme
Court certainly did not address those
issues in their opinion,” Rice said. “I doubt they put a lot of
importance
on that, I don’t know.”

Indiana Disciplinary Commission
Executive Secretary Michael Witte

What is remarkable is that Kelly went to extraordinary lengths to make sure he was following the rules and yet the Disciplinary Commission zealously prosecuted him anyway:

Before signing with Law Tigers, Kelly sought an opinion from the
Disciplinary Commission, which it declined to provide, according
to the record. He also sought an opinion
from the state bar and consulted with nationally recognized attorney
Lynda Shely,
outside ethics counsel to AAMIL and a
longtime director of lawyer ethics for the State Bar of Arizona.

“Quite frankly, it appears to Mr. Kelly
that the Commission’s attempt to use him as a test case amounts to a
due process violation because the Rules of
Professional Conduct certainly do not make it clear that participation
in (Law
Tigers’) group advertising is a violation
of the Rules,” Mulvaney argued in a brief to the court.

Pagano saw abuses and irregularities, too.

“The commission was well aware of
(Kelly’s) due diligence,” Pagano wrote. “In fact, following receipt
of his submission, the commission sent
(Kelly) a letter informing him it would not be pursuing charges against
him. The commission,
for reasons unclear, then reversed itself
and proceeded with the instant matter.”

Pagano noted in his findings that Rice
had difficulty articulating a proposed sanction when asked, ultimately
saying, “…
that’s not the important part of this. The
discipline is not the important part. It’s a determination of what
the rules require and what they say.”

“(T)he idea that (Kelly) should be used
as a mere instrument to re-write an exceptionally unsettled area of law
troubles
me deeply, especially in light of the
great lengths (Kelly) went to in ascertaining whether his participation
in AAMIL would
cause him disciplinary grief,” Pagano
wrote.

Other questions need to be asked. How much did the Kelly prosecution cost in terms of time and money? How much did Kelly have to pay to defend himself? How much did it hurt his career while the charges were pending? Those are real consequences from the Commission's ill-advised, zealous prosecution of Kelly that need to be considered by the Court.

It's just a hunch but I believe there is substantial dissatisfaction with Executive Secretary Witte's leadership of the Commission. I'd be surprised if his tenure is not near the end. If the Court appoints new leadership of the Disciplinary Commission, it needs to insist that the new Executive Secretary reset the Commissions' priorities so they are focused on protecting he public from unethical attorneys and not spending enormous resources on pursuing attorneys for minor alleged rules violations.. The Court also needs to do a thorough investigation of the Disciplinary Commission's grievance and charging practices, providing attorneys with anonymity as they will certainly be fearful that the Commission will retaliate against anyone who publicly criticizes the Commission, a fact I know all too well. There also needs to be much more transparency on Commission activities. It is a law of government bureaucracy that when agencies are allowed to operate in secrecy, the result at the very least is bureaucratic misconduct. The confidentiality rules governing the Commission are designed to protect attorneys not protect the Commission and its employees from their own misconduct which in this case may have violated the very disciplinary rules the Commission is supposed to enforce.

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About Me

I have been an attorney since the Fall of 1987. I have worked in every branch of government, including a stint as a Deputy Attorney General, a clerk for a judge on the Indiana Court of Appeals, and I have worked three sessions at the Indiana State Senate.
During my time as a lawyer, I have worked not only in various government positions, but also in private practice as a trial attorney handing an assortment of mostly civil cases.
I have also been politically active and run this blog in an effort to add my voice to those calling for reform.